Citation Nr: 1806542	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-05 771	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to specially adapted housing.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from June 1968 to June 1970.  
	
This matter comes before the Board of Veterans' Appeals (Board) on appeal from     a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In January 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge.  A transcript of this hearing has been added to     the record.  

The RO previously granted, in a September 2011 rating decision, entitlement to       a special home adaptation grant pursuant to 38 U.S.C. § 2101(b) (2012). This is       a different benefit than the one currently on appeal, which is specially adapted housing pursuant to 38 U.S.C. § 2101(a). The Veteran should contact the RO        for additional information on the special home adaptation grant concerning his questions with respect to that benefit.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA    will notify the appellant if further action is required.


REMAND

The Veteran is seeking entitlement to specially adapted housing pursuant to             38 U.S.C. § 2101(a).  He contends that he has blindness in both eyes and has effectively loss the use of his lower extremities.  

A certificate of eligibility for assistance in acquiring specially adapted housing    may be awarded to a veteran who is receiving compensation, in pertinent part, for permanent and total service-connected disability due to loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; blindness in both eyes having only light perception plus    the loss of use of one lower extremity; or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions     of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.  38 U.S.C.A. § 2101(a); 38 C.F.R. § 3.809. 

In Jensen v. Shulkin, 29 Vet. App. 66 (2017), the United States Court of Appeals for Veterans Claims (Court) stated for a "loss of use" to exist for purposes of specially adapted housing benefits, a veteran must have a permanent and total disability due to a disorder that involves both lower extremities and causes a loss of use so severe 
that it precludes locomotion without the regular and constant use of assistive devices. 

At his hearing before the Board, the Veteran testified that his service-connected leg disabilities have worsened since his most recent VA examination in December 2013 and that he now uses a wheelchair.  Although the Veteran has vision in the left eye that is light perception only, his vision in the right eye did not meet those criteria.  Under these circumstances, current neuropathy and eye examinations should be conducted.

Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are    in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Obtain updated VA treatment records.  If the records are unavailable, the Veteran should be notified of such.

2.  Schedule the Veteran for a VA neuropathy examination and a VA eye examination to determine     the severity of the Veteran's bilateral lower extremity neuropathy and visual impairment, respectively. All indicated tests and studies should be accomplished 
and the findings then reported in detail.  

3.  Once the above actions have been completed, and        any additional development deemed necessary has been accomplished, the issue on appeal must be readjudicated.  If the benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran       and his representative.  After they have had an adequate opportunity to respond, the appeal should be returned to     the Board for further appellate review, if in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).